TMI Blog2018 (8) TMI 995X X X X Extracts X X X X X X X X Extracts X X X X ..... est. The fact that the amounts were due and payable from the date the appeal was allowed is not in dispute. The postponement of the period from when interest became calculable is incomprehensive and illogical - the petitioner is entitled to interest calculable from the date when its appeal was allowed by this Court by order dated 14.05.2015. Petition allowed. - W.P.(C) 3118/2018 - - - Dated:- 10-8-2018 - MR. S. RAVINDRA BHAT AND MR. A.K. CHAWLA JJ. Petitioner Through: Sh. Tarun Gulati, Sh. Shashi Mathews, Sh. Vasu Nigam, Ms. Rachana Yadav and Sh. Abeer Kumar, for petitioner, in Item Nos. 4 and 5. Respondents Through: Sh. Satyakam, Advocate. ORDER S. RAVINDRA BHAT, J. 1. The facts are not in dispute. The pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reimbursement on the basis of turnover. Since the said assumption is factually incorrect and the turnover discount occurred apart from and outside the calculation of the sale price, rather prior to it , as in the case of Advani Oerlikon (supra), no question arises for deduction of any trade discount from the sale price. 35. In our view, thus, the turnover for the assessment years in question was correctly computed by the appellant herein after deducting the turnover discount granted to its dealers and rightly so declared in the returns. The assessing authorities have unjustly denied the benefit of deduction on such account. The first question of law, noted in para 2 noted above is, therefore, answered in the affirmative in favour of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ). It is submitted that the interest amounts would be due only from the time that procedure was followed and not before and that interest would be permissible only in accordance with that provision, i.e. Section 30(4) in the event the 90 days elapse. In this case, the judgment of the Court was delivered on 14.05.2015 and the petitioner approached the Sales Tax Department on 22.07.2015 and 20.11.2015. The Delhi Sales Tax authority s appeal by way of special leave before the Supreme Court was disposed of on 28.11.2016. In this background, the Revenue s burden of the song as it were is that since the 21 form was only filed on 25.05.2018 (as without prejudice measure) by virtue of this Court s order dated 09.05.2018, the interest on the refund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is issued why the amount deposited should not be forfeited. In our judgment, the claim raised by the Department in the show cause notice is thoroughly dishonest and baseless. In respect of a deposit made under Section 35F, provisions of Section 11B can never be applicable. A deposit under Section 35F is not a payment of Duty but only a pre-deposit for availing the right of appeal. Such amount is bound to be refunded when the appeal is allowed with consequential relief. 3. In respect of such a deposit the doctrine of unjust enrichment will be inapplicable. In the circumstances, the petition succeeds. The impugned show cause notice, which is annexed at Exhibit-F to the petition, is quashed and the respondents are directed to forthwith re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deposited remains a deposit pending appeal and is thereafter available for appropriation or disbursal consistently with the final order maintaining or setting aside the order of adjudication. 43. The learned Single Judge of the Kerala High Court in M/s. Alwaye Sugar Agency v. Commercial Tax Officer, Alwaye and Others 2011 (42) VST 517 also dealt with a similar controversy as is involved in the present case and under the provision of Amnesty Scheme announced in Kerala in the Budget Speech of 2010,the learned Single Judge directed that a sum of ₹ 75,000/- deposited by the petitioner-assessee under the said Scheme, cannot be adjusted against the interest portion under Section 55C of the Act, which is also akin to Section 42(6) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rse to an appellate remedy, do not necessarily bear the stamp or character of tax, especially when it succeeds on the particular plea. That being the case, the insistence upon a procedural step, i.e. filing of a form which is purely for the purpose of administrative convenience cannot in any manner fix the period or periods of limitation when the amounts became due on the question of interest. The fact that the amounts were due and payable from the date the appeal was allowed is not in dispute. In these circumstances, the postponement of the period from when interest became calculable is incomprehensive and illogical. For these reasons the petitioner is entitled to interest calculable from the date when its appeal was allowed by this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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